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The Family and Medical Leave Act (FMLA) requires you to provide unpaid sick leave to employees, but you also have a legitimate interest in ensuring employees do not abuse that leave. Because the FMLA prohibits you from interfering with benefits provided by it, you may risk running afoul of the FMLA while implementing policies that curb abuse.

We have written in the past about whether an employer that provides more generous leave may establish stricter requirements than those imposed by the FMLA. The Sixth Circuit, whose opinions cover Kentucky, answered yes.

Now, the recent Sixth Circuit decision, Srouder v. Dana Light Axle Manufacturing, confirms that an employer can enforce its customary notice requirements even when providing the bare minimum leave policy required by the FMLA. This decision also reconfirmed that employers can condition FMLA leave on strict adherence to notice requirements, so long as unusual circumstances do not justify a failure to comply.

In Srouder, Dana required each employee to personally call in his or her own absences to a specific phone number on a daily basis. If an individual failed to report to work for two days without calling in, the policy provided that the person had voluntarily quit. One employee had amassed numerous absences and repeatedly submitted incomplete FMLA certification paperwork. One day, he informed his supervisor at a meeting that he was scheduled for surgery the following week. The week of the surgery, the employee did not come in to work and failed to call in pursuant to the attendance policy. The Court agreed that Dana was justified in terminating the employee for failure to follow call-in requirements in the attendance policy, despite the fact the employee had “informed” Dana that he was going to be having surgery at a meeting with his supervisor.

In summary, certain policies aimed at preventing sick-leave abuse do not run afoul of the FMLA, such as obtaining medical certification from doctors and requiring employees to call in every day that they will not be working. Moreover, even in situations where an employee has given some form of notice, you are entitled to hold the employee responsible for strict adherence to your reporting requirements and to take disciplinary action, up to and including termination, against employees who violate the requirements. It remains important, of course, to ensure that you treat every employee the same with respect to enforcing strict adherence and FMLA leave, and always document all violations of workplace policies.

Phil is a partner and former co-chair of the Labor and Employment Department. He represents employers in defending against employment-related claims in both federal and state courts. He represents clients involving covenants not ...